MUTUAL RECOGNITION OF EXPULSION DECISIONS
CONCERNING THIRD COUNTRY NATIONALS

(a)
(21465)
9896/00

(b)
(22062)
13095/2/00

Draft Directive on mutual recognition of decisions
concerning expulsion of third country nationals.

Draft Council Directive on the mutual recognition of
decisions on the expulsion of third country nationals.

Legal base:

Article 63(3) EC; consultation; unanimity

Deposited in Parliament:

(b) 1 February 2001

Department:

Home Office

Basis of consideration:

(a) Minister's letter of 2 January 2001
(b) EM of 15 February 2001

Previous Committee Report:

(a) HC 23-xxx (1999-2000), paragraph 4 (22 November 2000)
(b) None

To be discussed in Council:

No date set

Committee's assessment:

Legally and politically important

Committee's decision:

(a) Cleared
(b) Not cleared; further information requested

Background

4.1 Article 63(3)(b) EC requires the Council
to adopt measures on illegal immigration and illegal residence,
including repatriation of illegal residents, by 1 May 2004. One
such measure is a draft Directive on the mutual recognition of
decisions on the expulsion of third country nationals.

4.2 We considered the draft Directive (document
(a)), proposed by France, on 22 November 2000. We made a number
of points on the draft, asked for clarifications to be given and
maintained the scrutiny reserve. The Minister of State at the
Home Office (Mrs Barbara Roche) has now replied, and has also
deposited a revised draft Council Directive (document (b)), together
with an Explanatory Memorandum.

The Minister's response

4.3 In her letter of 2 January 2001, the
Minister confirms that the Government has decided to opt in to
this measure and addresses the three principal concerns we expressed.
The first of these was to be informed of any consultation the
Government had conducted with non-governmental organisations (NGOs)
concerned with EU immigration and asylum issues and for a summary
of their views. On this point, the Minister replies as follows:

"Officials hold regular meetings
with UNHCR and with NGOs, including the Immigration Law Practitioners'
Association, Joint Council for the Welfare of Immigrants, Justice,
Refugee Council, Refugee Legal Centre, and the Immigration Advisory
Service, at which European issues are discussed. This instrument
was raised at a recent meeting and was also discussed at a Seminar
organised by JCWI on 29 November. NGO representatives have expressed
concern that some aspects of the draft Directive might contravene
the provisions of the European Convention on Human Rights. They
have indicated that they would consider writing to the Commission
on this proposal."

4.4 Our second concern was that the provisions
of Article 3 of the Directive appeared to require enforcement
in this country of an administrative decision taken in another
Member State where that decision is based simply on 'serious grounds'
for belief that a person has committed serious criminal offences
or where there is 'clear evidence of an intention to commit' such
offences. We asked if the Minister was satisfied that the enforcement
of an order based on these grounds would be consistent with the
European Convention on Human Rights, and Article 6 in particular.
The Minister comments on this point as follows:

"The draft Directive
makes it clear that an expulsion decision to be enforced under
Article 3.1.a must have been taken based on a serious and present
threat to public order or to national security and safety, considerably
restricting the scope of the proposal. The revised proposal also
now makes clear that enforcement of the decision by a Member State
must be consistent with the provisions of the ECHR and other applicable
international agreements (Article 3.2). We are satisfied that
anyone subject to such enforcement action would have the protection
of the ECHR and could rely on its provisions where appropriate."

4.5 Our third concern was over the provisions
of Article 4 which requires the enforcing State first to consider
the situation of the person concerned 'under the relevant international
instruments and under national rules applicable' before expelling
the person. We wished to know if the national rules would still
be effective to prevent enforcement, or whether such rules would
be displaced by the Directive. In reply, the Minister refers to
the ECHR, the UN Convention relating to the Status of Refugees,
the UN Convention against Torture and the UN Convention on the
Rights of the Child as being relevant international instruments
in this context and comments as follows on Article 4 :

"Although this measure is framed
in terms of a Directive, following negotiations in the working
group, the application of the proposal has been amended to make
enforcement of another Member State's expulsion decision voluntary.
The purpose of the Directive is stated as "to make possible
the recognition of an expulsion decision issued by a competent
authority in one Member State ......against a third country national
present within the territory of another Member State...".
It would therefore be for each Member State to decide whether
the enforcement of another Member State's expulsion decision would
conflict either with its own national legislation or an international
instrument to which it is a signatory before proceeding. Even
then, there would be no absolute requirement for any Member State
to enforce such an expulsion decision."

Document (b)

4.6 The Minister's letter of 2 January described
the amendments made to the proposal and which are incorporated
in the revised draft Council Directive. This has now been deposited
with an Explanatory Memorandum of 15 February. The effect of the
revised form of Article 3 is described as follows:

"Each Member State is
to decide whether the enforcement of another Member State's expulsion
decision would conflict either with its own national legislation
or with an international instrument to which it is a signatory,
before proceeding. Even then, there would be no absolute requirement
for any Member State to enforce such an expulsion decision."

4.7 Article 3.2 now provides that both the
expulsion and the enforcement measure must comply with the European
Convention on Human Rights and with other applicable international
instruments. The scope of the Directive also appears to have been
changed, in that the definition of 'third country national' no
longer refers to a person above the age of majority, and Article
1.3 causes the Directive not to apply 'to family members of citizens
of the Union who have exercised their right of free movement'.

Conclusion

4.8 We thank the Minister for her detailed
and helpful letter, which in large measure meets our concerns.
We note that enforcement ofdecisions is not to be made
obligatory, and we also note the requirement in the revised draft
that both the expulsion decision and the enforcement measure must
comply with the European Convention on Human Rights, and with
other applicable international instruments. In these respects,
the revised draft appears to us to be a considerable improvement.

4.9 We note the new provision excluding
'family members of citizens of the Union who have exercised their
right of free movement' from the scope of the Directive, and ask
the Minister to explain the purpose and effect of this exclusion.

4.10 We also invite the Minister to inform
us of the results of any consultation with relevant non-governmental
organisations on the revised draft Directive.

4.11 We are content to clear document
(a), given that it has now been superseded, but we hold document
(b) under scrutiny pending the Minister's reply.